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Constitutionality of Minnesota's Sodomy Law

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Constitutionality of Minnesota's Sodomy Law Minnesota Journal of Law & Inequality Volume 2 Issue 2 Article 5 December 1984 Constitutionality of Minnesota's Sodomy Law Sandra J. Grove Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Sandra J. Grove, Constitutionality of Minnesota's Sodomy Law, 2(2) LAW & INEQ. 521 (1984). Available at: https://scholarship.law.umn.edu/lawineq/vol2/iss2/5 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Constitutionality of Minnesota's Sodomy Law Sandra J. Grove* I. Introduction Lesbians and gay men in Minnesota, inspired by the gay rights movement, have increased the visibility of their political and social activities. Enhanced visibility of lesbians and gays has occasioned a growth in social tolerance of homosexuality, as well as organized vocal opposition from conservative sectors. Minnesota lawmakers have codified resulting ambivalence to- ward lesbians and gays in state and local law and in enforce- ment practices. Minnesota's sodomy statute serves to legitimate and enforce homophobia and discrimination against lesbians and gay men because people assume that the statute censors only homosexual acts1 and that its enforcement tends to discourage same-sex orientation. The statute, however, ren- ders many sexual acts illegal. Furthermore, sodomy laws are seldom actually used to prosecute consensual homosexual behavior. In contrast to this public discrimination, some Min- nesotans have sought and gained limited public approval and legal protection for lesbians and gay men under city ordi- nances.2 Minneapolis' civil rights ordinance,3 for example, pro- hibits discrimination based on "affectional preference" in employment and housing. Yet Minneapolis' lesbians and gay men seldom file claims under the ordinance for fear of further discrimination after the legal proceedings have brought them "out of the closet."4 * Sandra J. Grove is a J.D. candidate at the University of Minnesota. 1. In fact, Webster's Dictionary defines "sodomy" primarily as "copulation with a member of the same sex or with an animal." Webster's New Collegiate Dictionary 1096 (Woolf ed. 1981). 2. See, e.g., St. Paul, Minn. Legislative Code, ch. 74.01 (July, 1974) (re- pealed April 28, 1978). See also infra note 3; St. Paul Citizens for Human Rights v. City Council, 289 N.W.2d 402 (Minn. 1979). 3. Minneapolis, Minn. Code, Title 7, ch. 138, § 139.10 (1976). 4. Speech by Rick Osborne, Minneapolis Civil Rights Commissioner, Con- ference on Gay and Lesbian Rights, in Minneapolis, Minnesota (April 17, 1984). Law and Inequality [Vol. 2:521 Minnesota's sodomy statute has ramifications more seri- ous than legal or social ambivalence. The statute violates con- stitutional rights of lesbians and gay men and should therefore be invalidated. In a marked trend away from universal condemnation of homosexuality, twenty-two states have decriminalized consen- sual sodomy5 by either legislative action or judicial determina- tion. Minnesota's sodomy statute (section 609.293) typifies the thirty state sodomy statutes that remain in force in the United States today.8 The statute prohibits "voluntarily engag[ing] in or submit[ting] to" acts of "sodomy," which subdivision one de- fines as "carnally know[ing] any person by the anus or by or with the mouth."7 The sodomy statute and Minnesota's enforcement of it em- body the dominant social definitions of sexuality and gender roles. In particular, the legal attitude toward consensual sod- omy embodies social conceptions of the role of "consent" in de- lineating acceptable and non-acceptable sexual behavior for each gender. Elimination of state sodomy statutes may eventu- ally broaden the social definition of acceptable sexual behavior for each gender. Until then, constitutional arguments concern- ing sodomy laws may continue to originate in and strengthen 5. States that have decriminalized private, consensual, adult homosexual acts are: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Maine, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oregon, South Dakota, Vermont, Washington, West Vir- ginia,6. and Statutes Wyoming. prohibiting private, consensual, adult homosexual acts are: Ala. Code § 13A-6-65(a)(3) (1978); Ariz. Rev. Stat. Ann. §§ 13-1411, 13-1412 (Supp. 1977); Ark. Stat. Ann. § 41-1813 (1977); D.C. Code Encycl. § 22-3502 (West 1973); Fla. Stat. Ann. § 800.02 (West 1967); Ga. Code Ann. § 16-6-2 (1977); Idaho Code § 18-6605 (Supp. 1978); Kan. Stat. Ann. § 21-3505 (1974 & Supp. 1983); Ky. Rev. Stat. § 510.100 (1975); La. Rev. Stat. Ann. §§ 14:89, 14:89.1 (West Supp. 1977); Md. Ann. Code art. 27, §§ 553, 554 (Supp. 1977); Mass. Ann. Laws, ch. 272, §§ 34, 35 (Michie/Law. Co-op 1968); Mich. Comp. Laws §§ 750.158, 750.338, 750.338a (1968); Minn. Stat. § 609.293 (1982); Miss. Code Ann. § 97-29-59 (1972); Mo. Ann. Stat. § 566.090 (Vernon Supp. 1978); Mont. Code Ann. § 94-4118 (1975); Nev. Rev. Stat. § 201.190 (1977); N.C. Gen. Stat. § 14-177 (1969). Okla. Stat. Ann., tit. 21, § 886 (West 1951); 18 Pa. Cons. Stat. Ann. § 3124 (Purdon 1973); R.I. Gen. Laws § 11-10-4 (1969); S.C. Code Ann. § 16-15-120 (Law. Co-op. 1976); Tenn. Code Ann. § 39-2-612 (1975); Tex. Penal Code Ann., § 21-06 (Vernon 1974); Utah Code Ann. § 76-5-403 (Supp. 1977); Va. Code § 18.2.361 (Supp. 1978); Wis. Stat. Ann. § 944.17 (West Supp. 1978). 7. Minn. Stat. § 609.293, subdivision five reads: "Consensual acts. Who- ever, in cases not coming within the provisions of section 609.342 or 609.344 [criminal sexual conduct statutes], voluntarily engages in or submits to an act of sodomy with another may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $1,000 or both." Minn. Stat. § 609.293 (1982). 19841 MINNESOTA SODOMY LAW stereotypical and male-oriented gender conceptions. These conceptions help create and maintain ambivalent attitudes to- ward gay men and discriminatory actions against all women.8 Challengers of section 609.293 must avoid the perpetuation of sexism in their constitutional arguments. In this analysis, I begin with an overview of prosecutorial practice under section 609.293, using the recent trial of Judge Robert Crane Winton as an example. I then question the so- cial/sexual function of all sodomy statutes in male-dominated society. Next, I review various constitutional challenges to sec- tion 609.293. Finally, I conclude that although section 609.293 is unconstitutional on several grounds, lesbian and gay challeng- ers of the statute's constitutionality may best combat sexism and homophobia by using first amendment and cruel and unu- sual punishment arguments rather than those based on privacy doctrine. A. The Recent Trial of Judge Robert Crane Winton, Jr. Until 1984, the Minnesota sodomy statute had never been challenged on constitutional grounds.9 But the 1982 trial of Dis- trict Court Judge Robert Crane Winton, Jr. raised doubts about the law and its constitutionality. Although Winton's homosex- ual acts violated the sodomy statute, the State of Minnesota prosecuted and convicted him only under its prostitution statutes.10 After male youths claimed that Winton had hired them to engage in sex with him, including oral sodomy," Winton was 8. See infra notes 46-65 and accompanying text. 9. The Minnesota Civil Liberties Union raised the issue of section 609.293's constitutionality before the Minnesota Supreme Court in its amicus curiae brief for In the Matter of the Honorable Robert Crane Winton, Jr., S. Ct. File No. C8-83-150. 10. Minnesota v. Winton, Nos. 80369-1, 80370-1 and 80371-1 CO. (Minn. Dist. Ct. June 21, 1983). 11. In February of 1982, a series of television exposes was broadcast by WCCO-TV of Minneapolis. See Channel 4 News, WCCO-TV, I-Team series on the sexual abuse of children, Feb. 12, 1982, by Donald Shelby. WCCO's Donald Shelby introduced the segment about Winton by alleging that Winton sexually abused minors while using his judicial position to condemn other child abus- ers. The young men, whose proffles were shown in silhouette, described being solicited by Winton as they looked for male customers in Loring Park, a well- known center of male prostitution in Minneapolis. They described in detail be- ing driven to Winton's home, talking with him, and allowing him to perform fel- latio upon them, all for a fee ($40 in one instance). A special prosecutor was appointed to investigate the matter. Testimony from Winton's subsequent trial revealed that the television station had become aware of the young men's allegations through contacts with the police depart- Law and Inequality [Vol. 2:521 indicted on three charges:12 two gross misdemeanors for prosti- tution and one felony charge for prostitution with minors1 3 Winton pleaded guilty14 in exchange for a dismissal of the more serious counts. Before sentencing, Winton submitted a short statement to the court discussing his sexual orientation toward members of his own sex. He was convicted of two misdemean- ors and fined $300.15 This reduced sentence was quite lenient in comparison with sentences recommended for either prostitu- tion with a minor or sodomy. Judicial disciplinary actions against Winton followed the close of the criminal proceedings. In a hearing before the Min- nesota Board of Judicial Responsibility6 Winton again com- mented on his homosexuality. Board members asked him if he would continue to violate the state's sodomy statute. Winton replied, "I don't know," but added that within a suitable rela- tionship, "I'd probably do so."17 Despite these discussions, the ment. Some months earlier, a male prostitute had implicated Winton when asked by an officer to name any well-known customers. This information was passed along to Shelby, who then contacted the young man personally and per- suaded him to appear on television.
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