Criminal Law > Criminal Law Keyed to LaFave > The Abominable And Detestable Crime Against Nature Not To Be Named Among Christians: Sources And Limits Of The Criminal Law
Commonwealth v. Poindexter
Citation. 133 Ky. 720,118 S.W. 943,1909 Ky.
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Brief Fact Summary.
Appellees were charged with criminal sodomy, but appealed when they learned that their acts did not in fact constitute sodomy.
Synopsis of Rule of Law.
Kentucky’s Criminal Sodomy statute does not prohibit oral sex.
Facts.
Appellees C.H. Poindexter and Frank Moore were charged with criminal sodomy. They entered a plea of guilty, admitting that they had engaged in what is modernly referred to as “oral sex.” After the jury returned a guilty verdict and imposed a punishment of 2 years in the penitentiary, Appellees entered a motion for a new trial. Their motion for a new trial was based on the fact that they had misapprehended that the acts charged in the indictment constituted the crime of sodomy. As they learned after trial, the acts did not constitute criminal sodomy. The Circuit Court ordered a new trial in which the Appellees demurred the indictment. The Circuit Court sustained the demurrer and dismissed the indictment. The Commonwealth timely appealed.
Issue.
Did the Appellees’ actions (oral sex) constitute criminal sodomy?
Held.
No, The Circuit Court’s dismissal of the indictment is affirmed.
Because the sodomy statute does not define the crime, the Court must look to the common law and its sources to define the crime.
Sodomy, as defined by Bishop’s New Criminal Law, is a carnal copulation by human beings with each other against nature, or with a beast. It further states that a penetration of the mouth is not sodomy. The same conclusion is expressed in other treatises and likewise announced in American and English cases.
Discussion.
Because the statute making sodomy a crime does not in fact define what sodomy is, the Court must look to other sources to define what sodomy is. Here, the court looks at treatises and other American and English court cases. Because these sources have found that sodomy does not include “oral sex”, the Court is bound to follow precedent as opposed to following their own personal beliefs that such actions (oral sex) should be illegal.
