ONE has asked its legal counsel to write a series of articles for the magazine which will summarize in general lay terms. the law on various topics of interest to our readers. Please bear in mind that our Counsel cannot answer individual inquiries. Future topics will include Evidence, Witnesses, Entrapment, Constitutional Rights, etc.

and the Law

The Law and Meaning of Sodomy

In every State of the Union, and in any country where the English common law prevails, sodomy is a crime. It is a felony in most jurisdictions, punishable by imprisonment for at least one year in state prison, and thus equal in seriousness to burglary, robbery, arson and homicide.

In its strictest meaning, sodomy is the copulation of two human being per anus, or copulation of a human being with an animal. In its wider sense, and the sense in which it is used most frequently today, although incorrectly, it includes any unnatural sex copulation, including that committed orally.

History and Statutes

At common law in England, copulation per anus was punishable by death, punishment being administered by burning or burying alive. Copulation orally, however, was not considered sodomy, and went unpunished.

Almost all American states take their basic law from English common law, and thus sodomy has always been a felony in virtually every State in the Union. The definition in most modern jurisdictions, however, has been enlarged to include copulation committed orally as well as anally. Sodomy is sometimes referred to as the "infamous crime against nature," "buggery," etc.

California's statutes are typical of those of many states. Penal Code Sect. 286 reads:

"Every person. who is guilty of the infamous crime against nature, committed

with mankind or with any animal, is punishable by imprisonment in the state prison not less than one nor more than ten years."

California Penal Code Section 288a reads:

"Any person participating in the act of copulating the mouth of one person with the sexual organ of another is punishable by imprisonment in the state prison for not exceeding 15 years."

A former California code section which declared "fellatio" a felony was held Unconstitutional as not being stated in plain language, which accounts for the plain language of the above section, which replaced it.

Elements of the Offense

Unless specifically limited to behavior between man and man, a statute forbidding sodomy as "unnatural" sexual behavior is usually held to forbid such activity between man and man, woman and woman, or man and woman. The fact that the parties are husband and wife is no defense to the crime, and the act is no less criminal, although not often prosecuted.

The offense may be committed without compulsion or force. Consent of both participants does not vitiate the criminality, but merely makes the consenting party an accomplice. Any penetration, no matter how slight, is sufficient to complete the offense. While in the past, some jurisdictions held emission was a necessary element, the crime is now held to be complete upon peneration..

Where two individuals voluntarily par-

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