Sodomy

KENTUCKY LAW ON SODOMY AND DEGREES OF SODOMY

Sodomy is defined in Kentucky Revised Statutes Sections 510.070, 510.080, 510.090, and 510.100. There are three degrees of sodomy that may be prosecuted and a fourth degree of sodomy that has been ruled unconstitutional, although it still remains on the books. The definitions for the degrees of sodomy are the same as for rape, except they apply to “deviate sexual intercourse” instead of “sexual intercourse.”

Sodomy in the first degree occurs when a person engages in deviate sexual intercourse with another person by forcible compulsion or with another person who is incapable of consent because that person is physically helpless or less than 12 years old.

Sodomy in the second degree occurs when the accused is 18 years old or older and engages in deviate sexual intercourse with another person who is less than 14 years old, or who is mentally incapacitated or is incapable of consent because he or she is an individual with an intellectual disability.

Sodomy in the third degree occurs when the accused is 21 years old or older and engages in deviate sexual intercourse with a person who is less than 16 years old; or the accused is ten years older than the other party who is 16 or 17 years old at the time of deviate sexual intercourse; or the accused is 21 years old or older and the other person is less than 18 years old and provides a foster family home to the other person. It is also sodomy in the third degree if the accused enjoyed a position of trust or authority over the other person who, is less than 18 years old; or the accused was employed by the state and subjects the other person to deviate sexual intercourse who the employee or contractor knows to be under the authority of the state; or the accused is a peace officer serving in an official capacity and the other person is someone who the officer knew or should have known is in custody or under investigation.

Sodomy in the fourth degree was deemed unconstitutional by Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992). However, it is still on the books. Sodomy in the fourth degree occurs when the accused engages in deviate sexual intercourse with another person of the same sex, regardless of whether the other person consented. Lack of consent is not an element of fourth degree sodomy, as it is in the other degrees.

Lesser included offenses to sodomy are the lesser degrees of sodomy (second, third, and fourth), as well as sexual abuse and sexual misconduct.

SIMILAR CRIMES TO SODOMY

Rape
Sexual Abuse
Sexual Misconduct
Indecent Exposure

ELEMENTS OF SODOMY

In order to be convicted of sodomy, the commonwealth must prove the elements of sodomy as stated in the statute. The first element that must be proven is that the accused engaged in deviate sexual intercourse. The second element is that the deviate sexual intercourse was engaged in with another person. The third element that must be proven is lack of consent.
There are a few ways that lack of consent can be shown, which each correspond to a degree of sodomy. The first is forcible compulsion or incapacity to give consent (alleged victim is physically helpless or younger than 12 years old), which corresponds to sodomy in the first degree. Sodomy in the second degree requires that the accused be older than 18 years while the alleged victim be less than 14 years old or that the alleged victim be mentally incapacitated or incapable of consent due to an intellectual disability. Lack of consent in sodomy in the third degree requires includes a variety of prohibited age ranges for the participants as well as a number of relationships in which deviate sexual intercourse is prohibited such as between certain types supervisors employed by the state and their supervisees.

DEFINITIONS

The terms forcible compulsion, mental illness, individual with intellectual disability, physically helpless, sexual contact, and sexual intercourse are defined in KRS §510.010.
Forcible compulsion means physical force of threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense in KRS Chapter 510.
Mental illness means diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the DSM Third and any subsequent revision thereto, of the American Psychiatric Association.
Individual with an intellectual disability means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, as defined in KRS Chapter 202B.
Mentally incapacitated means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of an intoxicating substance administered to him or her without his or her consent or as a result of any other act committed upon or her without his or her consent.
Physically helpless means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act; this includes a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug.
Sexual contact means the touching of a person’s intimate parts or the touching of the clothing or other material intended to cover the immediate area of a person’s intimate parts, if that touching can be construed by a reasonable person as being don for the purpose of sexual arousal or gratification of either party; for a sexual purpose; or in a sexual manner for the purpose of exacting revenge or retribution, humiliating or degrading, or punishment.
Deviate sexual intercourse means any act of sexual gratification involving the sex organs and the mouth or anus of another; or penetration of the anus of one person by any body part or foreign they object manipulated by another person. KRS §510.110.

PENALTY FOR SODOMY IN KENTUCKY

In addition to incarceration, any conviction for sodomy, rape, or sexual abuse, or for criminal attempt, conspiracy, facilitation, or solicitation to commit any degree of these crimes triggers an application for an interpersonal protective order (IPO). KRS 510.037.
Sodomy in the first degree is a Class B felony and is therefore punishable by 10 to 20 years’ incarceration unless the victim is under 12 years old or receives a serious physical injury in which case it is a Class A felony and therefore punishable by 20 to 50 years or life incarceration.
Sodomy in the second degree is a Class C felony and is therefore punishable by five to ten years’ incarceration.
Sodomy in the third degree is a Class D felony and is therefore punishable by one to five years’ incarceration.
Sodomy in the fourth degree is a Class A misdemeanor and is therefore punishable by up to 12 months in jail and/or a fine.

SODOMY AS SEEN THROUGH CASE LAW

Caselaw helps to distinguish between the charges of rape and sodomy. For example, rape requires a finding of sexual intercourse, meaning a penetration of the sex organ while sodomy requires a finding of deviate sexual intercourse (i.e., an act of sexual gratification involving a foreign object manipulated person or the sex organs of one person and the mouth or anus of another). Fields v. Cm., 2011 WL 588620 (Ky. 2011).
For example, it would be sufficient to show that the victim’s lips and teeth in sodomizing the mouth. Galloway v. Com., 424 S.W.3d 921 (Ky. 2014). Thus, mere contact within the context of the statute can constitute deviate sexual intercourse. Bills v. Com., 851 S.W.2d 466 (Ky. 1993). Additionally, as is the case with rape as well, sodomy can occur between married couples. Mayo v. Com., 322 S.W.3d 41 (Ky. 2010).

DEFENSES

Defenses to a sodomy charge include the most common defenses to any crime, such as insufficient evidence, tainted evidence, factual innocent, and mistaken identity.
Consent can also be a defense to sodomy except where the statute has deemed the alleged victim is not capable of consent. Otherwise, the usual defenses may be available to the accused. These include consent, where consent is available. They also include insufficiency of evidence, tainted evidence, or looking into the motivations for a false accusation.
It is not a defense if the accused is mistaken as to the age of the victim. Therefore, it also does not matter if the victim lied about his or her age to the accused. If there is a position of trust or authority, it is not a defense that the accused did not know of the other person’s status if the accused should have known.

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