Colonial America: The Age of Sodomitical Sin, 1607-1783, by Jonathan Ned Katz

The years from 1607 to 1783 constitute the founding era of what became the United States. In the early years of this era, in these American colonies, the penalty for sodomy was death, and a number of executions are documented. Sodomy was usually conceived of then as anal intercourse between men. But why was sodomy thought of as treason against the state and punished so harshly? And what do we know of sexual and intimate relationships between women in these years, and the laws and responses to such intimacies? This feature presents or references the original documents that Jonathan Ned Katz collected in his books Gay American History (1976) and Gay/Lesbian Almanac (1983), along with evidence that others subsequently discovered. Published originally on OutHistory in 2012.

Sodomy Law: Pennsylvania, December 7, 1682

Sodomy punished by whipping, forfeiture of property, and hard labor

The first assembly held in the Province of Pennsylvania under the proprietorship of William Penn, reflected Quaker leniency in a significant law reform. The capital sodomy law of 1676 was repealed and a new Pennsylvania code (William Penn's "Great Law") limited the death penalty to murder, thereby abolishing it for sodomy, bestiality, etc.(1)

Since the earlier Quaker code of West New Jersey (1681) was silent about sodomy, this new Pennsylvania law was apparently the first in America to make sodomy a non-capital offense.

The new punishment for sodomy and bestiality consisted of a whipping, forfeiting one-third of one's estate, and six months at hard labor for a first offense. A second offense was punished by life imprisonment. (This six months at hard labor for first offense sodomy was, according to Louis Crompton, the briefest incarceration provided by any American sodomy statute for two-hundred and seventy-nine years, until 1961.)(2)

Although this Quaker law of 1682 abolished death for sodomy, the code's longest list of crimes were those against public morality, which were still punished severely.

Adulterers received a whipping and one year's imprisonment for a first offense, life imprisonment for a second.

For incest one forfeited half one's estate, and was imprisoned for a year for a first offense; a second offense received life.

A rapist forfeited one third of his estate and was imprisoned one year for a first offense; a second rape received life.

Bigamy, first offense, received life imprisonment.

Fornication was penalized by marriage (!), or fine, or corporal punishment, or by all or any of these, at the court's discretion.

Penalties were also provided for profanity, drunkenness, gambling, dueling, and for presenting and attending stage plays, masques, card and dice games, lotteries, etc.

The Pennsylvania sodomy provision of 1682 read:

...if any person shall be Legally Convicted of the unnatural sin of Sodomy or joining with beasts, Such person shall be whipped, and forfeit one third of his or her estate, and work six months in the house of Correction, at hard labour, and for the Second offence, imprisonment, as aforesaid, during life. [The reference to females was probably construed as applying only to the bestiality provision.]

No death penalty for sodomy (for white males), or for any other crime but murder, was specifically provided in Pennsylvania for thirty-six years, 1682-1718.

(For a brief period, after June 1693, sodomy and some other crimes may have implicitly been considered capital, according to English law.

In 1700 Pennsylvania legislators provided provided the death penalty for Blacks guilty of buggery [bestiality and sodomy], murder, burglary, and the rape of a white woman.)

The Pennsylvania law of 1682 was next revised in June 1693.

References

Jonathan Ned Katz, Gay/Lesbian Almanac (NY: Harper & Row, 1983), p. 119-120, citing George Straughton and others, Charter to William Penn, and Laws of the Province of Pennsylvania . . .(Harrisburg: Lane S. Hart, 1879), p. 110; Barnes, Evolution, pp. 31-36; Crompton, "Homosexuals," p. 282.
Crompton, "Homosexuals," p. 282.
The Pennsylvania law of 1682 is online; accessed June 7, 2017 from: http://www.palrb.us/statutesatlarge/16001699/1682/0/act/0009.pdf Thanks to Nina Lerman for this infromation.