The U.S. Supreme Court's 5-4 decision striking Texas law that made sodomy a crime lagged 32 years behind Colorado's decision in 1971 to do the same by legislation.
Our sodomy law goes back to the first territorial legislature of 1861, which met in Denver after Colorado became a territory Feb. 28, 1861 by proclamation of President James Buchanan.
Colorado territory received a boost in 1858 with the discovery of gold. The first legislature had a problem. A territory of 25,331 population (a number provided by historian Robert Lorch) consisting mostly of men, either in mining districts or in Denver, spelled trouble in River City.
The sodomy law passed in 1861 was never amended. It was called "the infamous crime against nature, either with man or beast, or any unnatural carnal copulation .... in any other way whatsoever." The offender could be imprisoned for one to 14 years. Solicitation of any unnatural carnal copulation subjected the offender to county jail for 30 days to two years. Unlike Texas, Colorado's law applied to both homosexual and heterosexual conduct.
At the same time, the legislature also forbade adultery and fornication. "Any man or woman who shall live together in an open state of adultery or fornication (on conviction) shall be fined in any sum not exceeding $200 each or imprisoned in the county jail not exceeding six months."
For a second conviction, the penalty was doubled. For the third conviction the penalty trebled the previous sentence, and the multiplication continued for each new conviction. So if you were convicted five times (say twice for adultery and three times for fornication), the penalty could be 41 years and six months for the last offense. By the time you got out of jail for five convictions, you could have served 61 years and possibly not be interested in committing that crime again. The only defense was for defendant to marry the other defendant.
In 1971, the legislature passed SB 262 by Sen. John Birmingham (R) and Rep. Ralph Cole (R) which rewrote the Criminal Code to take effect in 1972. Under this revision, fornication and sodomy were eliminated as specific crimes. Adultery was retained (and still is) under 18-6-501 as "any sexual intercourse by a married person other than with the person's spouse, which is prohibited."
Attorney Carroll Multz explained in an article in 1972, that because of adultery being "prohibited...the adultery provision does not come within the purview of the general penalty statute." That means you shouldn't do it, but you won't be punished if you do.
Any sexual act, deviant or otherwise, committed in public or possibly viewed by the public remains a basis for criminal punishment, and laws regarding forcible sexual acts or sexual acts with children retain strong penalties.
When Supreme Court Chief Justice O. Otto Moore retired from the court, he became a spokesman for Denver District Attorney Dale Tooley. At a House Judiciary Committee meeting in 1973 or 1974, the law concerning illegal sexual acts was discussed.
I asked Justice Moore "Mr. Justice, can you define for committee members the difference between adultery and fornication? Justice Moore paused for a moment and then (with a twinkle in his eye) answered "Well, I have tried both and I did not find any difference."
(Jerry Kopel served 22 years in the Colorado House.)
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