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State v. Whitmarsh

Citation. 26 S.D. 426,128 N.W. 580,1910 S.D.
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Brief Fact Summary.

Appellant was charged with a crime against nature for committing oral sex upon a 6 year old boy.

Synopsis of Rule of Law.

South Dakota’s “crimes against nature” statute goes beyond common law sodomy to include oral sex as well.


Appellant was charged with willfully, unlawfully, and feloniously making an assault upon a 6-year-old boy with the intent then and there to commit in and upon the person the detestable and abominable crime against nature in violation of section 351 of the Penal Code of South Dakota. The Jury returned a guilty verdict and appellant was sentenced to 3 years in prison. Appellant appealed from the judgment and from an order denying a new trial.


Does the “crimes against nature” statute, as prescribed in the South Dakota penal code, include oral sex?


Yes, the judgment of the trial court and the denial of a new trial are affirmed.
The Legislature included in the crime against nature other forms of the offense than sodomy or buggery (bestiality).

The method employed in this case is as much against nature, in the sense of being unnatural and against the order of nature, as sodomy or any bestial or unnatural copulation that can be conceived.

The clause “crime against nature”, as used in the South Dakota Statute, was so used intending to include every unnatural carnal copulation.

No satisfactory reason occurs to the court why the lesser form of this crime against nature (anal sex) should be covered by our statute, and the greater (oral sex) excluded, when both are committed in a like unnatural manner, and when either might well be spoken of and understood as being “the abominable crime not fit to be named among Christians”


The South Dakota Statute did not specifically mention “sodomy” but referred to the crime as a “detestable and abominable crime against nature.” The court finds oral sex to be many times more detestable and abominable than sodomy and reasons that not including oral sex within their statute is akin to holding that the killing of a human being in some peculiar and practically unheard of manner is not murder simply because such killing was committed in an unusual way.

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