“Ok, if it’s a boy we’re gonna call it: Sodomy!”
July 30, 2007
How often are we aware of the laws which define our bodies, and subdivide our sex? What are the legal ramifications, and who do I become, as a result of putting this body part in contact with that body part?
When activists discuss “sodomy laws,” and the repealing thereof, they generally refer specifically to a legal situation in which the actual acts of non-procreative sex are themselves criminalized. These laws could be and were used, basically, to “legislate against being gay,” in a very material way. It is worthy of note that in Oregon legislation (2005) the word “sodomy” continues to be used to indicate a variety of proscribed sexual contact, in spite of the fact that its meaning in this context has otherwise shifted profoundly over the past forty years.
In 1971, according to SodomyLaws.org and the glorious Wikipedia, laws prohibiting consensual anal and oral sex between adults were repealed in Oregon. Today, the word “sodomy” continues to carry a general, colloquial meaning synonymous with “anal sex,” and is regularly and uncritically associated with male homosexuality. The Oregon Revised Statutes define the word differently, however, and as defined within the ORS, “sodomy” is illegal in the state of Oregon.
“Sodomy” as defined within the statutes involves a specific set of sexual acts, with an additional dimension of meaning derived from the ages of involved persons. Specifically, “sodomy” involves acts defined as “deviate sexual intercourse,” and whether it is judged to be committed in the third or second degree is solely dependent upon whether the sodomized individual is under 16 or under 14 respectively, consent apparently notwithstanding. The question of consent is relevant in the demarcation of acts of ”sodomy” in the first degree.
“Deviate sexual intercourse” (ORS 163.305) means “sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.” Regular old “sexual intercourse,” on the other hand seems literally to require no definition. It “has its ordinary meaning and occurs upon any penetration, however slight; emission is not required (emphasis mine).”
“Sexual intercourse has its ordinary meaning.” It is presented as being so natural as to need no definition. Sexual intercourse, then, by these lights, may only happen between a man and a woman. A man and woman may engage in other varieties of sexual contact, but only a man and a woman are capable of engaging in “sexual intercourse” in its normative form. It is rendered as the norm against which other sexual contact must be defined. It is the straight and narrow road, from which anal and oral sex “deviate.”
Legally, then, sexual contact can be seen in Oregon to be divided into two types. One is cast implicitly as normal, in contrast with the other which is explicitly defined as “deviate.” Oregon statutes would seem, then, to suggest that gay sex is fundamentally abnormal. Perhaps I am beating a dead horse, but it seemed worth spelling out.
The definitions for ‘Rape’ in the 3rd, 2nd, and 1st degrees are to most intents and purposes identical in wording to the definitions of ‘Sodomy’ in the 3rd, 2nd, and 1st degrees, except that in the first case the assault involves “sexual intercourse,” and in the second case the assault involves “deviate sexual intercourse.” Additionally, beyond actually engaging in oral/anal intercourse with a youngster or unconsenting adult, it also may technically count as ‘sodomy’ to “[cause] another to engage in deviate sexual intercourse.”
Sodomy is not rape, because in order for rape to occur, a vagina must be involved. Thus a man or boy can never be ‘raped’ by a man in Oregon. That variety of violation may only be acted upon a woman or girl.
I was gratified to find the following article, even if it did remind me that in many of the blogposts of which I am particularly proud, I am reinventing the wheel at best. (I heart academia!)
Robertson, Stephen. ‘“Boys, of Course, Cannot be Raped”: Age, Homosexuality and the Redefinition of Sexual Violence in New York City, 1880-1955’ Gender & History, Vol.18 No.2 August 2006, pp. 357-379.
Robertson’s account illustrates some of the ways in which maintaining a legal distinction between the sexual violations of boys as opposed to those of girls (we may think loosely of “sodomy” as opposed to “rape”) creates a space in which shifting attitudes about sex and gender may be reflected. The way rape and sodomy may be differently treated in the workings of the legal system illuminates social assumptions about men, women, sex, sexual orientation, and violence.
The practical impact of our currently maintained distinction is unclear. In terms of sentencing guidelines, the offenses are separate but strictly equal – those convicted of ‘sodomy’ will theoretically be sentenced similarly to those convicted of ‘rape.’ In terms of actual numbers of offenders reported as incarcerated by the Department of Corrections, felons convicted of Sodomy I are only slightly less represented than those convicted of Rape I. I’d like to hear the thoughts on this distinction of someone with a bit more legal expertise than I (although, admittedly, this encompasses nearly everyone).
But look at what seems to be happening when the Criminal Justice Commission compiles statistics from Oregon crime data. Utilizing the Uniform Crime Reporting definitions, “violations of particular statutes are summarized in 28 categories.” One of these twenty-eight categories is “Forcible Rape,” defined almost quaintly as “the carnal knowledge of a female, forcibly and against her will.” Sodomy does not have its own category, but is rolled (along with statutory rape and indecent exposure) into “Other Sex Crimes.”
It is impossible to say whether this is merely a function of the number of reported offenses, as the actual numbers for sodomy are rendered invisible by their inclusion into the “Other Sex Crimes” category. However, at the point of highest incidence between 1980 and 2005, “Forcible Rape” was reported by 1,570 women. By comparison, there were 8,600 reports of “Other Sex Crimes” in the highest year of incidence for that category. It is certainly plausible that the numbers of reported incidents of rape and sodomy would be comparable. But it is simply impossible for us to determine that information from these particular reports.
This strikes me as rather absurd. Surely ‘forcible sodomy’ has more in common with ‘forcible rape’ than with ‘indecent exposure?’ What is the effect of this sleight of hand, this denial of the extremity of what in colloquial terms we might term “male rape?”
The most immediate answer to this question that leaps into my mind has to do with the culture of fear that surrounds violence against women. But I’m honestly more curious about what this means for men – implications about masculinity and fear, the effacement of danger to men, the denial of male rape stemming from deployments of shame, and the expectation that being subjected to brutal violence is simply part of living as a male.
For your information (please note that these are Oregon statutes):
163.355 Rape in the third degree. (1) A person commits the crime of rape in the third degree if the person has sexual intercourse with another person under 16 years of age. (2) Rape in the third degree is a Class C felony. [1971 c.743 §109; 1991 c.628 §1]163.365 Rape in the second degree. (1) A person who has sexual intercourse with another person commits the crime of rape in the second degree if the other person is under 14 years of age. (2) Rape in the second degree is a Class B felony. [1971 c.743 §110; 1989 c.359 §1; 1991 c.628 §2]163.375 Rape in the first degree. (1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if: (a) The victim is subjected to forcible compulsion by the person; (b) The victim is under 12 years of age; (c) The victim is under 16 years of age and is the person’s sibling, of the whole or half blood, the person’s child or the person’s spouse’s child; or (d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness. (2) Rape in the first degree is a Class A felony. [1971 c.743 §111; 1989 c.359 §2; 1991 c.628 §3] 163.385 Sodomy in the third degree. (1) A person commits the crime of sodomy in the third degree if the person engages in deviate sexual intercourse with another person under 16 years of age or causes that person to engage in deviate sexual intercourse. (2) Sodomy in the third degree is a Class C felony. [1971 c.743 §112]163.395 Sodomy in the second degree. (1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the second degree if the victim is under 14 years of age. (2) Sodomy in the second degree is a Class B felony. [1971 c.743 §113; 1989 c.359 §3]163.405 Sodomy in the first degree. (1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if: (a) The victim is subjected to forcible compulsion by the actor; (b) The victim is under 12 years of age; (c) The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor’s spouse; or (d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness. (2) Sodomy in the first degree is a Class A felony. [1971 c.743 §114; 1989 c.359 §4]