Shifting the Scene of the Crime: Sodomy and the American History of Sexual Violence

Abstract

was a triumph for the field of the history of sexuality. The majority decision declaring the state's sodomy law unconstitutional not only relied heavily on a historical argument but also drew extensively on recent historical scholarship to support its position. Writing for the majority, Justice Anthony M. Kennedy argued that early American sodomy laws were directed at nonprocreative behavior generally, not at homosexual conduct in particular, and, in practice, were not enforced against consenting adults acting in private. As such, there were no ancient roots supporting the proscription of consensual sodomy, as the 1986 Bowers decision, which upheld sodomy laws, had claimed. Those were the very arguments made in the brief put together by George Chauncey and a group of leading historians.1 But there is a further plank to Justice Kennedy's historical argument that is mentioned only in passing in the historians' brief and that has attracted little comment in the aftermath of the decision.2 In arguing that sodomy laws had not been enforced against consenting adults acting in

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