My cousin just pointed me towards a 1946 opinion by the California Court of Appeals, reversing an earlier sodomy conviction of my great-great uncle: http://law.justia.com/cases/california/calapp2d/74/269.html. The opinion is fascinating, both rhetorically and historically. I want to highlight some elements of it and use them to think about the uneven nature of “judicial progress.”
Most striking is the fact that the opinion never mentions sodomy (or other terms such as the “infamous crime against nature”). Instead, we just learn that “The appellant was convicted by a jury of a violation of section 286, Penal Code and of section 702 of the Welfare and Institutions Code.” From there, the whole opinion is about the sufficiency of the testimony of an “accomplice” to support a conviction. Yes, an “accomplice.” The court overturned the conviction because the judge failed to explicitly instruct the jury that the witness was also an accomplice. Accomplice testimony must be corroborated in order to support a conviction. And in fact, the opinion is cited by 14 later opinions according to Westlaw, with the most recent citation being in 2005. These later citations are for various crimes, including theft, assault, and bribery. The later citations are not about sodomy or sexuality.
There is all sorts of rhetorical tension in the opinion over how to describe the “accomplice.” He is also described as the “prosecuting witness” and as a “mere victim.” Let’s be clear about what we know about the facts of the case, from the opinion: Dobkin had sex with a 16 year old man. The 16 year old “accomplice” testified in court that they had sex. Dobkin was convicted on the basis of that testimony. The judge gave the jury general instructions about accomplice testimony (that it must be corroborated) but did not tell the jury that the 16 year old was an accomplice.
By repeatedly focusing on the term accomplice, the court downplays the idea of sexual deviance. Accomplice surely still rings of criminal deviance, but it also suggests consent, and as applied to sexuality even normality. We do see some hints of sexual deviance in the use of “prosecuting witness” and “mere victim.” The victim label is particularly interesting here. The opinion explains that because the witness was 16 years old, the jury might not have know that he could also be convicted of sodomy, and therefore the jury might have assumed he was a victim. So we see a hint of the stock narrative of gay men as predators. But that narrative is only introduced as a concern over how the jury might have interpreted the case. The court focuses on the idea that the witness was an accomplice, an equal, a consenting partner.
What do we make of this? In 1946, we see an appellate court reversing a conviction for sodomy without ever mentioning the crime by name, based on the fact that the “victim” was really an “accomplice.” Surely there are potential concerns with accomplice testimony in this case, but it is in some senses shocking to see a court stressing them in 1946. Our standard narratives of judicial progress tell us of a path from repression to liberation. In this linear narrative, we would not expect to see this pro-gay opinion in 1946. Police abuse and entrapment of gay men continued to be common well into the 1970s and 1980s (and even continues today). Most of these arrests went unchallenged, despite far greater civil liberties violations than jury instructions. And when they were challenged, courts were not always concerned with the use of evidence.
Yet, despite this seemingly shocking nature of the opinion in 1946, it is in other senses entirely consistent with what we know about LGBT history and the nature of judicial progress. First, the history question. It’s only post WWII that we really begin to see consistent persecution of lesbians, gays, and bisexuals. Before that, they were tolerated in many quarters, ignored in others. Occasional persecutions of lesbians and gay men made clear that they were not fully accepted, but they were not singled out for harassment the way they later were. So it is actually historically consistent to see a more lenient treatment of sodomy in 1946 than we see in later decades. Second, the judicial progress question. “Progress” is not linear, either historically or across states. Progress occurs as multiple courts in multiple jurisdictions consider multiple questions. Every court considers myriad factors, including legal doctrine, but also other political and cultural factors. By the time a state supreme court issues a constitutional opinion on an issue like sodomy, lower state courts have probably issued numerous opinions on multiple different grounds.
This conviction is also entirely consistent with what we do know about the historical use of sodomy laws. They were typically not used against consenting adults in private. Instead, they were often used as a sort of “catch all” sex crime law when police could not otherwise prove a sex crime occurred. I don’t know enough about how this case got to court to say definitively, but it appears that underage sex was part of it (again, fascinating that the opinion never mentions age of consent). If this had been two adults, it may have never reached court. But even with an underage partner, the court of appeals threw the case out, treating it as a case of “accomplices.” Fascinating.